Counterclaim in the division of property

Counterclaim in the division of property

In the event that the defendant has a claim for the division of common property when considering any disputes arising from family and legal relations with a man, if such a claim can be aimed at offsetting the original claim or excluding its satisfaction, he has the right to file it in court as a counterclaim. Such a statement is filed according to the general rules for filing a claim in the court considering the original case, without taking into account the principle of jurisdiction.

When accepting such a claim for consideration or refusing to accept it, the court issues a corresponding ruling. In case of refusal, it is not subject to appeal, because it does not exclude the filing of an application as an independent claim. The claims are considered jointly, which affects the decision – it can be made only after the dispute has been resolved on all claims made by the parties.

How to File a Counterclaim for the Division of Marital Property in Court

As is known, the division of common marital property can be carried out by agreement or by court order. In this case, the requirement for division may arise not only as the initial reason for filing a lawsuit in court, but also in the process of considering other property and non-property disputes arising from family or civil legal relations. If such a requirement arises within the framework of the defendant’s legal proceedings, then a counterclaim must be filed to file it.

The right of the defendant to file a counterclaim for the division of common property and to consider it jointly with the original claim is enshrined in the Civil Procedure Code of Ukraine (Civil Procedure Code of Ukraine). According to it, the right to file such a claim is subject to implementation before the decision is made (the judge retires to the deliberation room).

Denial of a counterclaim in the division of property through the court

If such a counterclaim is filed after retiring to the deliberation room or the court has refused to consider it, the defendant has the right to file it as an independent one. To avoid such a development of events, it is necessary to take into account the conditions, the presence of at least one of which allows filing a counterclaim for the division of jointly acquired property. Yes, a counterclaim can be filed if:

• A counterclaim is aimed at offsetting the original claim. The offset principle is defined in the Civil Code of Ukraine, according to which the obligation under the original claim may be fully or partially offset by a counterclaim of the same type. At the same time, according to the Civil Code of Ukraine, a claim for division of property as an offset is not allowed for the following claims:

1. on compensation for damage to health or life;
2. on the recovery of alimony;
3. if, according to the plaintiff’s application, the statute of limitations applies to counterclaims.

• Satisfaction of the counterclaim in full or in part will exclude the possibility of satisfying the claim under the original claim. Compliance with such a condition will be possible in cases where the counterclaim for division is declared as part of the process of recognizing the right of ownership of property by one of the spouses.
• A relationship can be traced between the claims under the original and counterclaim for division of property, due to which joint consideration of the claims will allow a faster and more correct resolution of the dispute on the merits. This condition is most common for counterclaims for division of common property and allows them to be presented when considering any disputes arising from the family and legal relations of the spouses.

Counterclaim for division of property of spouses: judicial practice

If a counterclaim for division of common property is filed without observing at least one of the specified conditions, then for these reasons the court issues a ruling to refuse to accept it. Such a ruling is not subject to appeal, since it does not exclude the defendant’s ability to file a claim as an independent claim.

Example

G. filed a lawsuit to dissolve his marriage with D., as required by the Family Code of Ukraine. The spouses who were dissolving the marriage also had disagreements regarding the property regime applicable to their joint property. Since they were unable to reach a mutual agreement with her husband, D., at the preparatory stage of the divorce process, decided to file a counterclaim for the division of the jointly acquired property of her spouse, indicating that there was a connection between the claims (Civil Procedure Code of Ukraine).

The court, in turn, accepted the said application for consideration, and issued a corresponding ruling. The court argued its position by the fact that a joint consideration of the case on the dissolution of the marriage and the division of the spouses’ property would contribute to a faster, more correct and objective resolution of the situation.

Draft a counterclaim for the division of the spouses’ common property

Based on the fact that a counterclaim is nothing more than a simple independent demand for division of property, declared in court for the purpose of procedural economy for joint consideration with another claim, it can be concluded that the procedure for drafting it is not much different from drafting a regular statement of claim. Thus, such a statement is drawn up taking into account the requirements established by the Civil Procedure Code of Ukraine.

When drafting a counterclaim, it is necessary to determine the price of the claim (Civil Procedure Code of Ukraine) based on the value of the part of the property that the applicant is claiming during the distribution.

A counterclaim for the division of jointly acquired property of spouses is filed with the court in the form of a written document. The correctness of its preparation is always reflected in the final results of the case, therefore, in the absence of professional skills and legal knowledge, it is advisable to contact a lawyer to prepare it.

Contents of a counterclaim for division of property of spouses through the court

When drafting it yourself, it is necessary to take into account the requirements of the Civil Procedure Code of Ukraine, according to which such a claim must contain:

1. The name of the judicial body to which the claim is filed, the full names of the plaintiff and defendant, their place of residence, telephone number and other personal data known to the applicant.
   The indication is already being considered by the court the initial statement of claim, the date of filing the claim, the subject of consideration, etc.
2. A detailed and concise description of the situation that has developed between the spouses (date of marriage, date of divorce, actual absence of relations, impossibility of maintaining a common life, etc.) in chronological order, a description of the specific circumstances of this situation and their support with facts. The specified circumstances must substantiate the counterclaims.
3. A description of each item included in the property that, in the opinion of the applicant, is subject to distribution between the spouses, indicating the value of each of such items, taking into account their market price, the state of things and their depreciation at the time of division.
4. Legal justification for the need to consider the counterclaim together with the initial claims, an indication of compliance with the conditions for this.
5. The essence of the violation of property rights to common property by the plaintiff, expressed in restricting access to common property, concealing it, etc., or a description of the threat of such a violation or other circumstances requiring compliance with human rights in the division of property.
6. The price of the claim, determined according to the above principle. Please note that if the other party does not agree with the price of the claim, it has the right to petition for an independent examination. In addition, if the judge finds the price of the claim does not meet the requirements, he will determine it independently (Civil Procedure Code of Ukraine).
7. Counterclaims for the division of common property with an acceptable division option for the applicant.
   List of attached documents taking into account the requirements of the Civil Procedure Code of Ukraine.

Filing a counterclaim in court when dividing the property of spouses

According to the Civil Procedure Code of Ukraine, a counterclaim is filed according to the general rules for filing claims, except for the rules of jurisdiction. Thus, according to the Civil Procedure Code of Ukraine, a counterclaim for the division of jointly acquired property is subject to consideration only by the court that considers the original claim, regardless of the applicable rules of territorial jurisdiction.

Before filing a counterclaim, the plaintiff must pay a state fee, the amount of which is determined according to the rules specified in the Civil Code of Ukraine, based on the price of the claim established by the application. A receipt for its payment is attached to the statement of claim, otherwise the claim may be left without action (Civil Procedure Code of Ukraine).

As already mentioned, a counterclaim for division of common property can be filed at any time before the judge retires to the deliberation room. It is important to keep in mind that:

• The right to file a counterclaim must be explained to the defendant by the court at the stage of preparing the case for consideration of the initial claim. If such requirements exist, the judge explains that the counterclaim is filed according to the general rules. It should be noted that a counterclaim for distribution is admissible only within the framework of consideration by the court of first instance – counterclaims are not filed at the stage of appealing decisions.
• The optimal stage for filing a counterclaim for the division of common property is the stage of preparation for consideration. The court issues a corresponding ruling on the acceptance of the counterclaim. In case of refusal to accept it, the applicant has the right to declare his claim as an independent claim.
• If a claim arises and a claim is filed at the stage of consideration of the case on the merits, the parties must decide on the issue of postponing the court hearing and providing the parties with time for the necessary preparation. When issuing a ruling on the postponement of the hearing, the court indicates the reasons for such a postponement and sets a new date for the consideration of the case, taking into account the actions that must be performed by the parties during the break.

Hearing in court of a counterclaim for division of property

After the counterclaim is accepted for consideration, the original and counterclaim for division of property are considered together. What is noteworthy is that the procedural position of the parties does not change – the defendant remains the defendant, despite the presentation of his claims. In such a hearing, the burden of proving the circumstances on which he bases his independent claims is placed on him, the parties present their arguments, present evidence to the court.

Despite the joint consideration of claims, taking into account the circumstances established by the initial claim, the court must answer a number of questions – what objects are included in the common property of the spouses and how to divide them between them.

Circumstances Affecting the Court’s Decision When Filing a Counterclaim for Division of Property

When considering a counterclaim for division of property, the court must establish the following circumstances:

1. The period during which the marriage existed, from the moment of its registration until the moment of its dissolution. This will determine the legal regime of ownership applicable to the property.
2. The moment and basis for the emergence of common ownership of the disputed property.
3. The subject composition of common property, the cost of each item included in it and their location. The specified circumstances are clarified by the court, based on the testimony of the parties and the documentary evidence provided – checks, contracts, invoices.
4. Grounds for changing the common property regime to a private property regime. In fact, the basis for this may be the desire of the spouses, expressed by them during the court hearing.
5. Limitation periods, if the plaintiff has filed a claim for their application. Please note that according to the Civil Code of Ukraine, their course begins from the moment when the applicant’s right was violated, that is, his access to common things was excluded or limited in one way or another.
6. A list of items of common property that each of the spouses will receive after the division.

Having clarified all the specified circumstances, the court has the right to make a decision. However, it should be taken into account that in the situation under consideration, the decision is made by the court only after considering the claims of each of the parties and contains conclusions for each of them. If the decision does not satisfy the defendant, he has the right to appeal it within a month to the court of appeal (Civil Procedure Code of Ukraine).

Lawyer’s Answers on Counterclaim in Dividing Marital Property

Counterclaim for division of property of spouses

The possibility of filing a claim for division of marital property as a counterclaim in family disputes is justified in most cases. Their joint consideration serves as an unconditional guarantee of maximum objectivity in resolving the issue of distribution of jointly acquired property, which is one of the aspects of the implementation of the property rights of spouses. In addition, this allows eliminating the possibility of the court making contradictory decisions, and also gives the parties a chance for reconciliation in the judicial process.